« AnteriorContinuar »
7. NEW PROMISE. — A letter from an alleged debtor stating that if he does
not bear from the creditor soon he will tender the amount due, and
that whatever is due is ready whenever he can safely pay either to
the person to whom the letter is directed, or to another person named
therein, does not constitute a new promise sufficient to remove the
bar of the statute of limitations, because it shows that there was a
dispate as to what was due and to whom it was payable, and that tho
alleged debtor was not willing to pay until these two questions were
settled. Braithwaite v. Harvey, 625.
Soo ADVERSE POSSESSION, 2, 3; COTENANCY, 1, 2; MORTGAGES, L
Seo INTOXICATING LIQUORS.
1. TO THE EXISTENCE OF A VALID Lis Pendens three things are neces.
sary: 1. The property must be of such a character as to be subject
to the rule; 2 The court must have jurisdiction both of the person
and of the res; 3. The res or property involved must be sufficiently
described in the pleadings. Norris v. Ile, 233.
2 LIS PENDENS BEGINS FROM THE SERVICE OF THE SUBPENA after the filing
of the bill. A purchaser from the defendant while the suit is pending
acquires his interest subject to such decree as may be rendered on the
hearing. Norris v. lle, 233,
3. Lis PENDENS IS NO MORE THAN THE ADOPTION OF THE RULE IN REAL
Actions at common law, where, if the defendant aliens after the pen.
dency of the writ, the judgment in the real action overreaches such
alienation. Norris v. Ile, 233.
4. A purchaser of lands pendente lite takes his title therein subject to the
final decree in the pending suit. Norris v. lle, 233.
5. THE DESCRIPTION OF THE PROPERTY IN THE PLEADINGS is sufficient if
any one reading them must be able to learn thereby what property is
intended to be made the subject of the litigation. The legal maxim
that that is certain which can be made certain applies to the ques.
tion whether property is sufficiently described to create lis pendens.
Norris v. Ile, .233.
6. A PURCHASER PENDENTE LITE NEED NOT BE MADE A Party to the
suit nor otherwise noticed by the litigating parties. Norris v. Ile, 233.
7. AMENDMENTS.-If a bill originally so defective in its description of prop-
orty, or, in the language of the prayer, as not to create lis pendens, is
afterward cured by amendment in these particulars the lis pendens will
commence at the time of filing the amendment, if the defendant has
been served with process. Norris v. Ile, 233.
8. THE FILING OF AN AMENDMENT does not prevent lis pendens operating
as under the original bill if such amendment does not set up any
new equity, nor bring forward a new claim or distinct ground of
relief. Norris v. Ile, 233.
9, DELAY OR LAPSE OF TIME IN THE PROSECUTION OF A Suit will not
create any estoppel against the right to enforce the rules of lis pendens,
unless the complainant has been 80 negligent in its prosecution as to
induce the belief that such prosecution had been abandoned. Norris v.
See LIMITATIONS OF ACTIONS, 1.
Seo CARRIERS, 2; RAILROADS, 6, 7.
Seo MASTER AND SERVANT, HØ
MANDAMUS AGAINST MUNICIPAL CORPORATIONS.- Mandamus does not lia
to compel a municipal corporation to enter into a contract with one
who shows himself to have been the lowest bidder in response to calls
for bids to do city work. Times Publishing Co. v. City of Everett, 865.
MARRIAGE AND DIVORCE.
1. DIVORCE ON AMENDED COMPLAINT.-REVIEW OF DECREE.—If a plaintiff
in an action for divorce, who has not acquired the statutory residence
within the state before bringing suit, acquires such residence before
filing an amended complaint setting up a distinct and separate cause
for divorce, the amended complaint is equivalent to bringing a new
action, and a decree of divorce rendered therein is regular so far as the
question of residence is concerned, and cannot be set aside as erroneous
on a bill of review. Wood v. Wood, 42.
2. DIVORCE—PLACE OF TRIAL IN ACTION FOR_JURISDICTION. — The trial of
an action for divorce in a county other than that declared by statute to
be the proper county for its trial does not go to the question of juris.
diction; and, in the absence of proof to the contrary, the law of a sister
state in which the divorce was granted will be presumed to be the same
as our own on this point. In re Ellis' Estate, 514.
& Divorce in ANOTHER STATE-COLLATERAL ATTACK. –If the jadgment of
a court of a sister state, granting a divorce on the complaiut of a wife,
is collaterally attacked in this state, its validity cannot be affected by
the fact that she was induced to bring the action by persuasion, ill.
treatment, and threats by the husband that unless she did bring it be
would continue his ill-treatment. In re Ellis' Estate, 514.
A DIVORCE IN ANOTHER Srate – VOLUNTARY APPEARANCE-COLLATERAL
ATTACK—JURISDICTION-JUDGMENT. —If both parties voluntarily apa
pear in an action for divorce in the court of another state, and submit
to its jurisdiction, they are bound by the judgment, and cannot aroid
it in a collateral proceeding in this state by proof that, when the action
was brought and judgment rendered, neither of them was a resident of
that state, but that both were residents of this state. In re Ellis' Em
6. DIVORCE IN ANOTHER State-COLLUSION—JURISDICTION-JUDGMENT-
COLLATERAL ATTACK.-If residents of this state go to another state for
a divorce, collusion between them as to the judgment to be rendered in
the action does not affect the jurisdiction of the court of that state, or
render its judgment void when collaterally attacked in this state. Is
re Ellis' Estate, 514.
& JUDGMENT FOR Divorce, VACATING.—THE SUBSEQUENT marriage of the
plaintiff does not impose any obstacle to the vacation of the decree of
divorce if it was procured through the excusable neglect of the defend.
ant, where such motion is made promptly and within the timo allowed
by the statute. Simpkins v. Simpkins, 641.
1. MARRIED WOMEN-LIABILITY FOR EXPENSES OF DIVOROB PROCEEDING.
A statute providing that in divorce proceedings "the court may, in ita
discretion, require the husband to pay any sums necessary to enable
the wife to carry on or defend the suit, "including costs, and may award
oxecution therefor or direct such sums “to be paid out of any property
sequestered, or in the power of the court, or in the hands of a receiver,"
clearly indicates that snch proceedings are to be maintained at the cost
of the wife, unless the court shall relieve her therefrom by an order for
expense money to be paid by her husband. Wolcott v. Patterson, 456.
1 DIVORCE_JUDGMENT WITHOUT AWARD OF ALIMONY-EFFECT OF.-A
judgment in a divorce suit settling the property rights of the parties,
without an award of alimony, is, after the time of appeal has elapsed,
u final as any other kind of a judgment, exo 80 far as the power to
modify it may be reserved to the court itself, or is given by statutory
provisions. In such a case, in the absence of any such reservation or
power, the court has no jurisdiction to make an order or supplemental
decree granting alimony for the support of the wife and children.
Howell v. Howell, 70.
DIVORCE-ALIMONY MODIFICATION OF ORDER.—The statutory provi.
ion authorizing the court, from time to time, to modify its orders for
the maintenance and support of the wife and children, contemplatos
that the right to alimony, as well as other property rights, shall havo
been presented and litigated in the action for divorce, and established
by the judgment. If the right to alimony has been thus established,
the amount may be changed by a modification of the order; otherwise
there can be no modification, for there is nothing to modify. Howell
v. Howell, 70.
HO. ALIMONY-CONCLUSIVENESS OF DECREE. —A wife who, in her action for
divorce, fails to show by her complaint in what her husband's estate
consists, or that it is within the jurisdiction of the court, cannot, after
obtaining a decree of absolute divorce, with a large sum as alimony,
have the decree vacated or amended on a bill of review, on the ground
that the court failed to set apart to her one-third of her husband's os.
tate as by statute provided. Wood v. Wood, 42.
11. ALIMONY IN Gross.-An allowance of alimony in gross by consent of
the parties at the time the decree of divorce is rendered is not error.
Wood v. Wood, 42.
See DoWER, 1.
Seo HUSBAND AND Wire; TAXk, 2
See MORTGAGES, 5, 6.
MASTER AND SERVANT.
L LIPRENDENT CONTRACTOR's LIABILITY FOR NEOLIG ENOR.—The owne,
and not the independent contractor, is liable for injury arising from nogo
ligont construction of tho work if the owner rotains and mercises the
1 ST. REP, VOL XLIIL
right to direct the manner in which the details of the work shall be
performed, but the contractor is liable if the power of the owner to
direct the construction is confined to the result of the work without
any control over the manner in which it is done. First Pres'yterian
Congregation v. Smith, 808.
2 INDEPENDENT CONTRACTORS — NEGLIGENCE - LIABILITY AFTER ACCEPT.
ANCE OF Work.-If an employee at the time of assuming possession of
work from an independent contractor knew, or ought to have known,
or from a careful examination could have known, that there was any
defect in the work, he is responsible for any injury caused to a third
person by defective construction. First Presbyterian Congregation v.
& INDEPENDENT ContractORS - LIABILITY FOR Negligence AFTER ACCEPT.
ANCE OF WORK.-1f an accident happens or injury is sustained after
work done by an independent contractor has been accepted by the
employer, and he has resumed possession, no recovery can be had by a
third party against the contractor for negligence in the construction of
the work. First Presbyterian Congregation v. Smith, 808.
4 Negligence, Machinery.--In an action by an employee against his
master to recover for personal injury, the test of liability is not danger,
but negligence, which can never be imputed from the employment of
methods or machinery in general use in the business. Reese v. Her.
8. NEGLIGENCE – MACHINERY. — The use of machinery without a guard
being the ordinary custoin of the trade is not prima facie negligence on
the part of the master in case of injury to the servant, and can only
become negligence if the servant's inexperience is such that he ought
to have been given special instructions concerning its use, and such in.
structions were not given. Reese v. Hershey, 795.
6. Negligence-EVIDENCE. - In an action by an employee against his mas.
ter to recover for personal injury caused by the temporary remoral of
a safety guard of inachinery, evidence is admissible to show that the
same kind of machinery was used without guards in other factories
where the employee had previously been employed, and that the guard
in question was not in general use in the business Reese v. Hershey,
7. DUTY OF SERVANT_LIABILITY OF MASTER.- Fellow-servants owe to their
master a diligent and watchful care over his business, and to each other
a vigilance and caution for their own safety. The master is not liable
for the consequences of their cufaithfulness to him unless he continues
them in his employ with knowledge thereof, nor is he liable when he
has violated no duty owing by him to thein. New Pillsburyh Coal etc
Co. v. Peterson, 327.
& FELLOW-SERVANTS. - If one servant is injured by the negligence of another
servant while they are directly co-operating with each other in a par.
ticular business in the same line of einployment, or their duties bring
them into habitual association so that they inay exercise mutual in.
fluence upon each other, promotive of proper caution, and the master is
guilty of no negligence in employing the servant causing the injury,
the master is not answerable to the other servant suffering therefrom.
Chicago etc. R. R. Co. v. Kneirim, 259.
9. FELLOW-SERVANTS VICE-PRINCIPAL Employees serving a common
master, engaged in the same common pursuit, and in accomplishing
the same common object, are fellow-gervants. The mere fact that ono
of them has power to employ or discharge the others does not make him
a vice-principal. New Pittsburgh Coal etc. Co. v. Peterson, 327.
10. VICE-PRINCIPAL. - A foreman may be, and ordinarily is, but a mere
fellow-servant. The burden is upon an injured servant to show by
allegations in his complaint that such foreman, whose negligence caused
the injury, is a vice-principal and not a fellow-servant. New Pittsburgh
Coal etc. Co. v. Peterson, 327.
11. Vice-PRINCIPALS. — The question as to whether an employee is a vice.
principal or a fellow.servant must be determined by ascertaining whether
the act performed or duty omitted is one, the doing of which is charged
upon the master, and by bim delegated to the servant. If it is the
servant is a vice-principal, and the master is liable for injury resulting
from such act or omission by such servant, provided the injured serv.
ant is free from negligence and has not assumed the hazard. New
Pittsburgh Coal elc. Co. v. Peterson,
12. VICE-PRINCIPALS.— Whether an employee is a vice-principal or a fellow.
servant does not depend upon his rank, but upon the fact as to whether
the duty omitted or the act performed by him is one owing from the
master to the injured servant, the discharge of which the master has
conferred upon the negligent servant. New Pillsburgh Coul etc. Co. v.
13. VICE-PRINCIPALS—LIABILITY OF MASTER.–A servant injured by the
negligence of another servant must show by his complaint that some
duty of the master to him has been violated in order to hold the latter
liable, and, if such duty is one, the discharge of which has been dele.
gated by the master to a servant, not only the duty but the delegation
of it, as well as its violation, must be alleged and shown by the com.
plaint. New Pittsburgh Coal etc. Co. v. Peterson, 327.
14. The DelegATION OF A DUTY Which THE MASTER OWES TO His SERV.
ANT OF EXERCISING REASONABLE AND ORDINARY CARE AND DILIGENCE
in providing and keeping in repair reasonably safe machinery and ap.
pliances cannot relieve him from liability to a servant injured by the
failure to exercise such care and diligence on the part of another sery.
ant to whom the duty has been delegated. Chicago etc. R. R. Co. v.
15. ASSUMPTION OF RISK BY MINOR SERVANT.-In working in a dangerous
place an adult servant must take ordinary care to observe and ascertain
what dangers and defects are incident to his service, and if, by the uso
of such care, he ought to observe and comprehend such dangers or
defects, he assumes all risk by continuing in the employment; but
whether a minor servant is of sufficient age, intelligence, discretion,
and judgment to bring hinwithin the operation of this rule is a ques.
tion of fact for the jury. Luebke v. Berlin Machine Works, 913.
16. MINOR SERVANT'S KNOWLEDGE OF DANGER, How DETERMINED.-A
minor servant, in working in a dangerous place, must, as much as an
adult, exercise the degree of intelligence, knowledge, and judgment ac-
tually possessed by him. The question, however, in such a case, is not
what the minor, in fact, knows or comprehends as to the danger to
which he is exposing himself, but what he, in view of his age, intel.
ligence, discretion, and judginent, ought to know and understand
Luebke v. Berlin Machine Works, 913.
See DAMAGES, 3, 4; El.EVATORS; RAILROADS, 8-13